By Sonya Parsons, Partner, Luke Geary, Partner and Hudson Digby, Associate

Practitioners in the historical abuse space have been waiting for the High Court to consider the case of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore, on appeal from the NSW Court of Appeal, which was heard in the High Court on 8 June 2023.  A judgment will be handed down in due course.

This is the first time that the High Court has considered the principles of permanent stay applications in the context of historical abuse claims.  Despite limitation periods being removed in all Australian jurisdictions following the Royal Commission into Institutional Responses to Child Sexual Abuse so that claimants can bring claims many decades after the abuse occurred (as opposed to being limited to the usual limitation periods of generally 3 years), the state and territory legislatures have deliberately not overridden or reduced the ability of defendants to apply for a permanent stay of those proceedings.  Such stay applications will be successful where, in general terms in these types of cases, the passage of time has had a burdensome effect that is so serious for the defendant that a fair trial is not possible.

The applications generally focus on a lack of witnesses and the loss or unavailability of documentary evidence.

In the case of GLJ[1], the NSW Court of Appeal found that where multiple key witnesses had died, including the alleged offender, a stay should be permitted, because the defendant could not meaningfully investigate or respond to the ‘central issue’ of whether the sexual abuse occurred.  This was despite documentary evidence being available that shed light on the alleged offender’s propensity to offend, and the tendency evidence of other survivors who alleged that they were also abused by the same offender. The stay was granted despite the NSW Court of Appeal finding that there was no manifest unfairness to the defendant on the negligence and vicarious liability aspects of the claim.  Those findings were not challenged in the High Court.

GLJ, in her written and oral submissions, focussed on:

• the Court of Appeal giving too much significance to the death of the alleged offender;
• other evidence being available for the Court to consider, including of other settlements by the Diocese of abuse claims against the alleged offender, tendency evidence, the vicarious liability evidence about the role of a priest in the Diocese, and potential evidence from people whom GLJ alleges that she told about the assault;
• the purpose of the Royal Commission being to facilitate historical abuse claims being brought, and because of this foundation for the amendments to the Limitation Act ‘applications for stays must be approached with a greater tolerance for imperfection’.

The Diocese of Lismore, in its written and oral submissions, focussed on:

• the Diocese being unable to properly cross-examine GLJ, given the lack of witnesses and documentary evidence in respect of the allegation of sexual abuse, resulting in them being ‘utterly in the dark’ on the ‘central issue’;
• the Diocese being unable to rebut GLJ’s version of events;
• there being nothing that implicated the alleged offender in respect of GLJ so as to put the Diocese on notice of enquiries before his death (and before the complaint being brought); and
• the express words of s6A of the Limitation Act 1969 (NSW) permit stay applications to be brought, and do not undermine the intent of the legislative changes following the Royal Commission.

During the hearing on 8 June 2023, the High Court Justices focussed their questions on:

• whether GLJ’s first boyfriend and first husband (to whom she said she made disclosures of the abuse many years ago) were available to give evidence, and which party’s responsibility it would be to seek out those witnesses. It was suggested that it might be oppressive for the Diocese to be forced to make those enquiries some 55 years later.  The Court appeared to be critical of GLJ for suggesting that evidence might be available, but taking no further steps to confirm whether it was;
• the Diocese’s alleged knowledge of the alleged offender’s offending from the time of his laicisation, and whether that should have set the Diocese on a chain of enquiry regarding whether he abused any other children, some 25 years before he died; and
• whether GLJ was effectively seeking a change in principle in the application of the current judicial guidance around stay applications in the context of s67 of the Civil Procedure Act 2005 (NSW), based on the removal of the limitation period, i.e., whether the question of the granting of a stay in cases of historical sexual abuse should be treated any differently to cases of a different nature altogether.

A copy of the transcript from the hearing before the High Court on 8 June 2023 can be found here.

Our previous case note on the Court of Appeal decision in GLJ can be found here.

We will await the judgment with interest, noting the impact the High Court’s decision in this case will have on many other cases pending all around Australia.

[1] The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78